Breaking News on President Trump’s Executive Order on Refugees and Immigration from Certain Countries 02.01.2017
Overview of the Executive Order (“EO”)
Last Friday, President Trump issued an Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” This order suspends entry of all refugees to the United States for 120 days, bars Syrian refugees indefinitely, and blocks entry into the United States for 90 days (from the date the Executive Order was signed) of “immigrants and nonimmigrants” who are nationals (and dual nationals traveling under the passports of) at least seven countries (currently: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen). The President lowered the annual refugee quota from 110,000 (proposed by President Obama for FY 2017) to 50,000. Finally, the EO ended the Visa Interview Waiver Program, which allowed the State Department to waive the nonimmigrant visa interview for certain low-risk travelers (NOTE: the EO does NOT end the Visa Waiver Program, which permits citizens of 38 countries to enter the U.S. after registration in the ESTA system, without a visa).
Within 30 days of the EO, DHS is required to provide a list of information needed from each country “to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat”, as well as a list of countries that do not supply such information. There are no further details on what type of information or assurances the EO will require, but we expect to know more after the DHS report is submitted in 30 days.
Keep in mind when reading this alert that the Administration’s interpretations of the EO have steadily evolved since Friday, mostly in a positive direction, and will likely continue doing so. We will do our best to keep you up to date in this regard.
Exceptions to the Ban
The following individuals are currently being viewed as exceptions to the EO:
- Lawful Permanent Residents (LPRs): On Sunday, DHS Secretary Kelly reversed course from the clear language of the EO, classifying LPRs as an exception to the general ban under the view that admitting LPRs is “in the national interest”. This backtrack came in response to widespread public protests and multiple lawsuits filed by the American Civil Liberties Union. However, there are reports that LPRs are still being evaluated on a case-by-case basis upon re-entry, particularly on the issue of criminal history and abandonment of residence (i.e., excessive periods of time outside the country). LPRs who are citizens or dual citizens of the seven prioritized countries should expect delays and additional screening upon re-entry. Moreover, persons who have not obtained or retained dual citizenship, but were born in one of the countries, also should expect enhanced inspection procedures upon arrival in the U.S. Note: DHS Secretary Kelly’s noted exception to LPRs does not apply to bearers of immigrant visas who have not yet been admitted as LPRs, only to current LPRs traveling under a valid I-551 (current green card or temporary I-551 stamp).
- Dual Citizens/Nationals: Initially, the ban appeared to include natives of the seven identified countries, even if they also were citizens of any other country, including Canada. Subsequently, DHS has clarified that Canadian dual citizens of one of the seven countries are not affected by this order. After subsequent confusion over whether the UK would also be exempted, CBP issued a directive on the afternoon of January 31, 2017 (available here) confirming that “dual nationals of the seven countries…are being treated according to the travel document they present.” Thus, for example, a Canadian citizen born in Iraq traveling under a Canadian passport should be treated as a Canadian citizen. However, even if you are traveling under a passport of a non-prioritized country, you should expect additional delays and security clearance screening, and ensure that either a friend or family member is expecting you at the airport when you land. Make sure they have the number for the local ACLU so they can be notified if you run into problems.
- Certain visa holders: By its own terms, the EO does not apply to “those traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas.”
All Visas “Provisionally” Revoked for Nationals of the Seven Countries
Yesterday, the Justice Department released a Department of State notice (available here) dated 01/27/2017 (the same day as the EO was issued) and issued by Edward J. Ramotowski, Deputy Assistant Secretary of the Department of State Bureau of Consular Affairs. Through this notice, Deputy Assistant Secretary Ramotowski “provisionally” revoked all immigrant and nonimmigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, with the exception of A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, and certain diplomatic visas. The notice exempts visas determined to merit a waiver based on a case-by-case determination by the Secretaries of State and Homeland Security, and when in the national interest. No process currently exists for applying for such a waiver, and no statement has been made by the Secretaries of Homeland Security and State as to how or when they plan on developing and implementing such procedures. This universal revocation (which appears to have immediate effect) may explain why individuals from the seven prioritized countries were being detained and removed from the U.S., and are being denied permission to board flights to the U.S. under what they believe to be valid visas.
While 22 CFR 41.122(a) authorizes “a consular officer, the Secretary [of state] or a Department [of State] official to whom the Secretary has delegated this authority…to revoke a nonimmigrant visa at any time, in his or her discretion,” it is unclear whether the Deputy Assistant Secretary has the authority to revoke a broad class of visas without making individual determinations. See 22 CFR 41.122(a) (emphasis added). Similarly, 22 CFR 42.82(b) authorizes such a designated official “to revoke an immigrant visa at an any time, in his or her discretion,” but may only “provisionally revoke an immigrant visa while considering whether the visa holder is eligible for the visa”. See 22 CFR 42.82(b) (emphasis added). Thus, different standards seem to apply to the provisional revocation of immigrant and nonimmigrant visas, and the validity of this Department of State notice will likely be tested in legal challenges to come.
Notably, pursuant to 22 CFR 41.122(b), a “provisional revocation” is subject to reversal through internal procedures established by the Department of State. Upon reversal of the revocation, the visa immediately resumes the validity provided for on its face.
Current Consensus on International Travel
EVEN IF you fall within one of the exceptions to the ban (LPRs, dual citizens/nationals, and certain visa holders), it is advisable to consult with an immigration attorney prior to any departure from the U.S. If you are an affected LPR, we would recommend that you wait a few weeks before planning international travel, to allow agency guidance exempting LPRs from the EO to filter down to officers in the field, and thereby avoid unnecessary hassles at the airport.
IF YOU ARE NOT an LPR of the U.S, a dual citizen/national, or a holder of a diplomatic visa, a North Atlantic Treaty Organization visa, a C-2 visa for travel to the United Nations, or a G-1, G-2, G-3, and G-4 visa, please see the following guidance:
- WITHIN THE UNITED STATES: If you are a non-LPR and citizen of one of the affected countries, do not plan any international travel for the next 90 days at least, or until all the confusion has been clarified and agencies have issued consistent guidance. This includes those in nonimmigrant status (e.g., B, F, J, H, O, TN, etc.) as well as those with an approved application for advance parole.
- OUTSIDE THE UNITED STATES: If you are a non-LPR and citizen of one of the affected countries, avoid planning any travel to the U.S. for the next 90 days. During this period, procedures establishing case-by-case waiver processes may emerge, but at the present time the process does not exist, and denial of boarding by the airline is almost certain given the Department of State’s blanket “provisional” revocation of all visas. While several federal courts have issued temporary injunctions against the EO, enforcement is inconsistent at airports across the U.S. If you are allowed to board and you have a valid visa or refugee entry document, and you must travel to the U.S. right away, the safest option is to land at Logan International Airport in Boston, MA before February 5, 2017 (prior to the expiration of the federal court order blocking the deportation AND detention of those who would otherwise be permitted to enter the U.S. but for the EO), and carry a copy of the January 29, 2017 order (available here). Make sure you have family members waiting to meet you at the airport, or contact the Massachusetts ACLU to alert them of your travel plans (contact info available here).
Processing of Pending Visa and Immigration Applications Halted Until Further Notice
It appears that in addition to the refusal of admission for those with valid travel documents, the Department of State (DOS) has halted processing both immigrant and nonimmigrant visa applications for citizens of the affected countries. Also, there are unconfirmed reports that DHS has halted adjudication of immigration benefits.
- Regarding the issuance of visas, the Department of State issued the following press release (available here):
- “Urgent Notice. Per the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals signed on January 27, 2017, visa issuance to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended effective immediately until further notification. If you are a citizen of one of these countries, please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please DO NOT ATTEND. You will not be permitted entry to the Embassy/Consulate. We will announce any other changes affecting travelers to the United States as soon as that information is available.”
- Multiple sources report that DHS has ordered United States Citizenship and Immigration Services (USCIS) headquarters and all field offices to halt processing all “I-forms” (e.g. I-130’s, I 140’s, I-485s, etc. — those related to permanent residence) where the applicant or beneficiary is a citizen or dual citizen of one of the seven listed countries. This halt may also include persons just born in one of these countries, even if not necessarily a citizen of these countries. Little guidance has been given as to whether this order applies to cases where interviews have already been scheduled or completed, but we have received some reports that anonymous USCIS officers have indicated that they will adjudicate cases to the extent possible but withhold final decisions until they receive more guidance from USCIS HQ.
- The same sources report that USCIS officers have stated they will continue to adjudicate N-400 and N-600 applications, though there are some conflicting reports that ALL application processing will be halted.
Duration of Ban
The ban on admission to the U.S. for non-LPRs who are citizens or passport-holding nationals of an affected country is 90 days. However, it appears the ban will not be automatically lifted following the 90-day period, and it is uncertain whether the seven prioritized countries would be willing and/or able to comply with the conditions for lifting the ban, which may require lengthy and costly bureaucratic changes. The EO essentially requires the seven countries to provide new specified information to DHS to enable the agency to verify the identity and minimize the risk of threat of security risks, and if the other country refuses or is unable to provide such information, to keep the country on the banned list. The EO also authorizes DHS to impose the same requirement on other countries and add their nationals to the ban if they refuse to comply.
Additional Restrictions on Refugees
- The 120-day suspension of refugee admissions applies to citizens and nationals of all countries.
- During the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.
- Similarly, once the 120-day ban is lifted, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality (no specifics have been given as to how a determination will be made on whether a particular religious group is in the “minority”).
- The EO bans indefinitely all Syrian refugees from entering the U.S. until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. In effect, the EO has eliminated the prospect of Syrian refugee resettlement for the moment as there is no further clarification of what may be deemed “sufficient” or “national interest.”
- The EO prohibits DOS and DHS from admitting more than 50,000 refugees for fiscal year 2017 (after the suspension is lifted), which reduces by over 50% the number of refugees the U.S. previously committed to accepting this year.
- As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of the EO, restraining the U.S. government from barring the admission of refugees seeking admission as part of the U.S. Refugee Admissions Program, holders of valid immigrant and nonimmigrant visas and other individuals from the seven designated countries. This stay applies nationwide. Several other federal courts have issued similar stays. Compliance with these court orders have been inconsistent across the country.
If you wish to take action in response to the EO, the ACLU and the American Immigration Council are two organizations accepting donations to fund the mobilization of legal opposition and representation for individuals and communities affected by the EO. If you are a U.S. citizen or permanent resident, call your Representative and Senators to express your opinion on the EO and how it affects you, your family, and your community. If you belong to a labor union, a religious organization, or community advocacy group, speak to them about organizing a collective response to the EO. If you are working for a U.S. company or corporation, consult with your employer about their reaching out to the appropriate elected officials in an official capacity.
Further Updates Likely
More than past Administrations, the Trump Presidency seems hasty and disorganized in its policy making, ensuring that guidance on these and other immigration issues will likely keep evolving, and sometimes will provoke extreme confusion. We will keep you posted as we receive more reliable information.
Attorney Speaking Engagements
Ware|Immigration attorneys frequently present at regional and national conferences. They also have speaking engagements at various universities and corporations across the nation.
Mr. Ware will be speaking at the following upcoming events:
Feb. 10, 2017
Feb. 21, 2017
“The Sanctuary Campus and the Future of DACA”
Association of International Education Administrators
Mar. 9, 2017
“Intersection of Employment and Immigration Law”
Federal Bar Association
San Antonio, TX
May 28 – Jun. 2, 2017
NAFSA Annual Conference
Los Angeles, CA
Jun. 21-24, 2017
AILA National Annual Conference
New Orleans, LA
Mr. Ware also recently presented recently at the following engagements:
Nov. 1-5, 2016
NAFSA Region XII Conference
Rancho Mirage, CA
Nov. 6-7, 2016
NAFSA Region VI Conference
Nov. 8, 2016
Nov. 15-16, 2016
West Virginia University
Nov. 18, 2016
Hult International School of Business
San Francisco, CA
Nov. 21-22, 2016
Dec. 4, 2016
International Medical Graduate Taskforce Conference
Dec. 5, 2016
Dec. 8-9, 2016
AILA Solo and Small Firm Conference
Lake Buena Vista, FL
Jan. 19-20, 2017
Oregon State University
Jan. 24, 2017
American Immigration Lawyers Association (AILA)
Webinar on Allied Healthcare Professionals
If you are interested in attending one of the presentations or inviting an attorney to speak at your business, please contact [email protected] to discuss possibilities.